Over the last years, the interaction of international investment law and international and domestic tax measures has gained increased attention. According to UNCTAD data, tax issues have already played a role in approximately 15 percent of all known investment disputes. Especially, the 2020 awards in Vodafone v. India and Cairn Energy v. India have fuelled a debate on the role of investment arbitration in the resolution of tax-related disputes.
On the policy level, this debate comes at a time of significant reforms of the international tax systems. Noteworthy developments include the global corporate minimum tax initiative endorsed in November 2021 by the G20 and the OECD/G20 Inclusive Framework for the implementation of the Base Erosion and Profit Shifting (BEPS) Project, which aim at tackling tax avoidance, improving the coherence of international tax rules and ensuring a more transparent tax environment. Implementing these initiatives will also have to consider their relationship with other frameworks of international economic governance, specifically international investment treaties.
Several investment treaties include provisions that refer to tax-related issues. Commonly, carve-out clauses in various treaties filter out of the jurisdiction of an investment tribunal the State’s sovereign power to tax. But more sophisticated provisions are found, for instance, in the Energy Charter Treaty’s Article 21 or in Article 11 of the 2021 Canadian Model FIPA. Despite the tendency to include tax carve outs in investment treaties, there seems to be limited detailed discussion on the rationale for a complete removal of taxation measures from an investment tribunal’s jurisdiction.
The vast majority of investment treaties currently in force, in any event, lack a general tax carve-out. As in Cairn Energy v. India, tax issues are frequently at the core of arguments submitted by the parties. There, the tribunal held that retroactive taxation violated fair and equitable treatment. Additional questions have been raised, for instance, in First Majestic v. Mexico, where an arbitration has been initiated to enforce obligations under a double taxation treaty. There, the Claimants allege that Mexico failed to properly engage in the tax treaty dispute settlement under the mutual agreement procedure.
Finally, tax issues may also arise in post-award matters. This can be the case, even in investment arbitrations that otherwise lack a tax law angle, when the tribunal’s award may be subject to taxes that might prevent achieving the goal of granting full compensation for the damages caused by the acts and treaty violations of the State.
This panel will address relevant policy questions, as well as practical aspects on the increased importance of tax matters in investment arbitration. It will feature a dialogue between tax and investment law practitioners, and academics that will shed light on the interaction between those two regimes.
World Arbitration Update (“WAU”) invites you to attend a 75-minute webinar discussion by leading practitioners in the international dispute resolution field on the recent developments concerning the intersection of dispute resolution and the Ukraine-Russia crisis. According to the Kyiv School of Economics, Ukraine has so far experienced economic damage amounting up to $600 billion. Over $10 billion in airplane assets have been reportedly stranded in Russia setting off potentially large insurance claims and related disputes. Yale School of Management has collected data showing that almost 1,000 companies have publicly announced they are voluntarily curtailing operations in Russia to some degree beyond the bare minimum legally required by international sanctions. The Russian parliament continues to consider the expropriation of foreign assets. International disputes involving Russia and Ukraine are arising from the crisis and more likely to follow. Our speakers will discuss related topics, including: the impact of sanctions, the proposed formation of an international claims commission for Ukraine, the impact of the crisis on the legal profession, the potential and current international forums in which Ukrainian businesses and investors could submit legal recourse to address the consequences of the war in Ukraine, as well as an update on the ICJ case, Ukraine v. Russian Federation.
September 26 at 6:00 pm to 7:30 pm GMT
Moderators: Gene Burd (FisherBroyles) (TBC)
Presenter: Rob Houston (K&L Gates Straits Law LLC)
Panelist: Tatyana Slipachuk (Of Counsel at Chief Legal Department of the Ukrainian Parliament, Special Advisor at Sayenko Kharenko Law Firm) (TBC)
Panelist: Raja Bose (K&L Gates Straits Law LLC) (TBC)
Panelist: Derek Loh (Deputy Director-General (Economic & Social), Attorney-General’s Chambers, Singapore) (TBC)
Panelist: Simon Chesterman (Dean, National University of Singapore School of Law)
In response to the imposition of international sanctions on Russia for its invasion of Ukraine, Russia has imposed sweeping economic measures on foreign investors from States it considers “unfriendly”, including Singapore, the UK, the US, and EU Member States. Both international sanctions on Russia and Russia’s own economic measures on foreign investors have had wide-ranging impacts across global market sectors, affecting foreign investors from around the world both directly through compliance mechanisms and indirectly through international commercial contracts.
However, a number of venues exist for the resolution of the wide range of disputes anticipated to result from the current crisis. In particular, foreign investors may still seek protection under investment treaties. Currently, there are 62 BITs in force between Russia and other States, including 27 States that Russia has determined to be “unfriendly” as a result of international sanctions imposed on Russia. Such treaties generally include substantive obligations to promote and protect foreign investment (e.g., to provide fair and equitable treatment, not to undertake unlawful expropriation of foreign investments, etc.) as well as for access to investment treaty arbitration against the Host State in certain circumstances. Such public international law obligations under international investment treaties now appear at odds, for example, with recent economic measures imposed by Russia against foreign investors including:
Currency Transfer Restrictions
Transaction Approval Requirements
Prohibition of Foreign Currency Export
Restrictions on Debt Repayment
Prohibition of Certain Exports and Imports
Non-Enforcement of Intellectual Property Rights
Also, the Russian Duma has considered additional measures (which many anticipate to be expropriatory) to effect the transfer of ownership or operation of certain foreign investments where foreign investors have ceased operating in Russia in the current climate of international sanctions. The resulting international legal climate arising from Russia’s actions in Ukraine breaks new ground in public and private international law. Practitioners are therefore broadly anticipating a wave of disputes both in international commercial arbitration and in investor-State arbitration, including with respect to claims advanced by covered investors in investment treaty arbitration against Russia for economic measures like the above.
This panel will explore the implications of these developments both from a global perspective and a regional perspective in Southeast Asia, highlighting the following key points of interest:
The Current International Sanctions Climate
Regional Focus on International Sanctions in Southeast Asia
Consideration of Current Venues for Disputes Arising from the Invasion of Ukraine
Potential Mechanisms for Foreign Investors to Pursue Claims Arising from the Conflict in Ukraine in Investment Treaty Arbitration
Anticipated Disputes and Issues in International Commercial Arbitration Prompted by the Conflict in Ukraine
The Current Landscape for Sovereign Immunity and the Potential for Enforcement of Arbitral Awards Against State Assets
This program will provide a brief summary of recent developments in relation to Russia’s invasion of Ukraine and identify key legal issues, including the interplay between international sanctions and customary international law (e.g., the characterization of countermeasures and the application of the law of State Responsibility (including State Defences) in Public International Law as well as issues arising in Private International Law and International Commercial Arbitration (such as Force Majeure). The panel discussion will be followed by a Q&A period as well as a networking session.
